Lumbard, Chief Judge, and Smith and Anderson, Circuit Judges. Lumbard, Chief Judge, concurring.
J. JOSEPH SMITH, Circuit Judge:
This is an appeal from two judgments of the District Court for the Southern District of New York, Milton Pollack, Judge, denying on argument, and again on reargument, 286 F. Supp. 855 (S.D.N.Y.1968), the application of petitioner Fox to annul an order directing him to report for active duty with the United States Air Force and discharging him from the Air National Guard due to unsatisfactory participation in his reserve unit. The issues on appeal are the validity of the military orders, and the jurisdiction of the District Court over the claim.
On August 7, 1962 appellant Fox voluntarily enlisted in the New York State Air National Guard and the Air National Guard of the United States. His enlistment record specified:
I certify that I have been advised of the 6 year service obligation I have acquired under the provisions of 10 U.S.C. 651.
I * * * acknowledge to have voluntarily enlisted * * * in the Air National Guard of New York and as a Reserve of the Air Force with membership in the Air National Guard of the United States for a period of [six] 6 years under the conditions prescribed by law * * *
Petitioner also signed a statement of participation in the Air National Guard which reads:
3. I understand that upon failure to accomplish any of the above [basic training, followed by yearly requirement of 48 drills and 15 days field training], my name will be sent through channels to the appropriate agencies for their action in determining how much service I will be required to perform by recall to active duty.
Fox served 131 days active duty (basic training) in 1962. Thereafter Fox was in 1965 repeatedly absent from required drills without excuse. At the time of Fox's enlistment there were two statutes providing for the call-up of members of the Air National Guard who fail to participate satisfactorily in a reserve unit.*fn1 Because of the unexcused absences in 1965, Fox was ordered to 45 days' active duty pursuant to 10 U.S.C. § 270(c).
In 1966 Congress passed Public Law 89-687, 80 Stat. 980, which was codified in 1967, 10 U.S.C. § 673a, and is the authority for the order which is at issue in the present case.*fn2
Fox's unexcused absences from drills continued following the 1965 order to 45 days' active duty. In the fiscal year 1966-67, Fox had 19 unexcused absences and 12 excused absences. On October 18, 1967, Fox was alerted that he had been recommended for active duty pursuant to Public Law 89-687 as a result of his unsatisfactory participation in drills. [The minimum standard for satisfactory participation in the Air Force Reserves (Manual 35-3, Ch. 41) and Air National Guard (Reg. 39-10) is 90% attendance in required drills.]
Fox requested a hearing to rebut the allegation that he had failed to attend 90% of the required drills, on the grounds of a conspiracy against him, a denial of appropriate duty, and failure to punish other reservists with similar records; Fox also alleged financial hardship (sole support of his father), and change of physical condition (injuries to his left knee and hand). At the hearings before Morton Zucker, Staff Judge Advocate of the Air National Guard, in December 1967 and January 1968, Fox was represented by civilian and military counsel. The Staff Judge Advocate dismissed Fox's allegations as unsupported by evidence, and recommended that Fox be ordered to active duty pursuant to 10 U.S.C. § 673a and Executive Order 11366.
On May 29, 1968 the Office of the Commander of the Air Reserve Personnel Center issued an order directing that Fox be involuntarily activated for a period of 18 months 5 days, pursuant to 10 U.S.C. § 673a, effective June 25, 1968, and that Fox report to Cannon Air Force Base in New Mexico on July 1, 1968. Plaintiff Fox alleged that he did not receive the order until June 7, 1968.
At the time the order was issued Fox had served 176 days on active duty (including the 45 days in 1965); this was deducted from the statutory 24 months, leaving 18 months and five days. Fox's annual two weeks field training, amounting to ten weeks over the five-year period since 1962, was apparently not considered ...